Delaware becomes first state to include digital accounts in estate law
And then, you die.
What happens to these very real forms of digital and (in some cases) social capital?
Even worse, iTunes has no mechanism by which ownership can be transferred to an heir, which in the real world is like having one’s record collection go up in flames the instant he or she dies. Something clearly needs to be done to remedy these problems.
Fortunately, in at least one state, something has. This month, Delaware enacted the Fiduciary Access to Digital Assets and Digital Accounts Act, which permits people to leave instructions in their wills for social media and email accounts, blogs, iTunes and cloud storage lockers like Dropbox to be passed onto their heirs. And if Suzanne Brown Walsh of the Uniform Law Commission has her way, similar laws will be enacted in all 50 states.
On the one hand, the fact that such a law passed apparently without resistance is welcome news. On the other hand, the fact that a law like this is only now being pushed, despite the fact that iTunes and cloud computing are both years old, is a troubling sign of how slow the law is to change in an era when planned obsolescence sometimes happens in mere months, rather than years. It also is emblematic of a failure by lawmakers to view digital assets as real in the same sense as actual physical ones, despite the fact that they often mimic physical assets.
Just as iTunes is, in principle, no different from a collection of compact discs, blogs can easily be thought of as collections of correspondence and/or private diaries that, in an older era, might have been passed down in actual physical form. Emails are clearly analogous with letters. Cloud computing of the type practiced by Dropbox may as well be considered the equivalent of a safety deposit box, and no one would contest the right of loved ones to inherit those.
While most of the digital goods under consideration look and act like physical goods of times past, there is another element to the issue that makes it especially puzzling that it has taken so long to address this issue. That is, unlike physical goods, which can depreciate with the effects of time, it’s taken for granted that the Internet is forever. The existence of the Wayback Machine, as well as numerous other means by which archived materials can be recovered from digital netherspace (that is, if it even needs to be recovered at all) speak very well to this sense of agelessness. If a person’s perishable physical assets can be passed down, then surely goods that can last forever without aging or depreciating should be covered the same way.
Whatever the reason that it has taken so long to update the law, hopefully the rest of the nation will look to Delaware as an example. And hopefully in future, the law can change in response to technological shifts at the speed of email, rather than lagging behind it like some imitation of the Pony Express.